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Wybrane aspekty nowelizacji prawnych podstaw członkostwa Polski w Unii Europejskiej – uwagi na tle wyroków polskiego i niemieckiego trybunału konstytucyjnego w sprawie aktów normatywnych stabilizujących strefę euro

Author(s): Magdalena Bainczyk / Language(s): Polish Issue: 1/2014

The judgement of the Polish Constitutional Court of 26 June 2013 compared with the judgment of the German Federal Constitutional Tribunal of 18 March 2014 indicates that some significant amendments should be introduced into the Polish Constitution. Both amending procedures foreseen by the Treaty of Lisbon and the “Schengen method” used to reform the Eurozone imply a necessity to differ between the ordinary revision procedure and the simplified revision procedure also in national constitutional law. Taking into a account German constitutional provisions and jurisprudence of the German Federal Court such an amendment allows to concentrate on a question how to effective secure an influence of Polish constitutional institutions, especially the Sejm, on integration process.

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Prawo swojszczyzny („Heimathrecht”) jako wyraz przynależności do gminy

Author(s): Grzegorz Kądzielawski / Language(s): Polish Issue: 1/2014

A characteristic feature of Austrian law was the definition of a citizen’s belonging to a commune. It was described as the relationship of domicile (German: Heimathrecht, Polish: swojszczyzna). The details were regulated by the Act of 3rd December 1863 on the regulation of domicile relations. This law was of exceeding significance as it gave the right to stay in the commune, and claim provisions and aid in poverty. With the Act on Citizenship of the Polish State coming into force on 20th January 1920, holding the right of domicile (in one of the communes within the Polish State, that was previously a constituent of the Austro-Hungarian State) was one of the premises deciding about the right to citizenship. Another legal act that defined further the question of citizenship was the act on the regulation of the right of choosing Polish citizenship by the citizens of the former Austrian Empire and the former Kingdom of Hungary and the right of choosing foreign citizenship by the former citizens of these states holding Polish citizenship, of 26th September 1922. Two bylaws were published for the said act. The first, issued by the Council of Ministers on 12th December 1922, and the other – the ordinance of the Minister of Internal Affairs of 6th February 1925. It guaranteed the persons who enjoyed the right of domicile in the territories that had belonged to Austro-Hungary and which found themselves within the borders of the Republic of Poland, the optional right to the Polish citizenship. The right of domicile could be compared to the duty of registering residence, and from the act on registration of people and identity cards in contemporary Polish legislation. The article aims at analysing the legal grounds of the operation of the domicile right against the acts-ensconced obligation of belonging to a commune and the citizenship right. It also contains a description of the practical application of the domicile right.

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Wybory członków Rady Nieustającej (aspekty organizacyjno-prawne)

Author(s): Marek Krzymkowski / Language(s): Polish Issue: 1/2013

The Standing Council (Rada Nieustająca) was appointed at the session of the Sejm in 1775 as a collegiate governmental body. The procedure of election of new members of the Council started with the selection of candidates from among people meeting one of the conditions defined in the Constitution on the Appointment of the Standing Council. The elections proper, held by secret ballot, followed a day after the list of candidates was presented to the senators and members of the parliament. The conditions for the validity of the vote were defined in the Constitution of 1775. Senators and MPs embarked on the elections in a specified order, especially important in the case of the senators. It was defined by the Constitution of 1768. A committee was appointed for the counting of the votes; membership in the committee i.e. appointment to a scrutineer (egzaminator) was considered highly prestigious.

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Nadzór nad cywilnymi służbami specjalnymi

Author(s): Mateusz Kolaszyński / Language(s): Polish Issue: 2/2013

The article presents the issue of control over five intelligence and security agencies: the Internal Security Agency (ABW), Foreign Intelligence Agency, Central Anti-Corruption Bureau (CBA), Military Counterintelligence Service, and Military Intelligence Service. After 1989 Poland experienced frequent and quite chaotic changes in the area, which is why there is currently no coherent model of controlling the special services. Some of the solutions applied in the past twenty years hinders effective control. Such control provides one the hand management in line with the priorities of foreign and security policies conducted by civilian politicians, while on the other is a prerequisite for effective external control over the activities of secret services. It is worth mentioning that changes recently introduced in this area are also temporary. The article focuses on the period 1990 – 2013. The idea of civil supervision over the first secret service institution (Office for State Protection, UOP) emerged in 1990. The regulation became law on the power of the Act of 6th April 1990 on the Office for State Protection. The latest changes to it were introduced in 2013 in a Regulation of the Council of Ministers of 28th February 2013 on the detailed scope of authority of the Minister of Internal Affairs (currently Bartłomiej Sienkiewicz) in the coordination of special services. Besides the legal system, the article presents examples of political practice, and solutions adopted in other constitutional democracies.

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Problem konstytucyjności administracyjnego sądownictwa ubezpieczeń społecznych

Author(s): Michał Nowakowski / Language(s): Polish Issue: 1/2012

At the moment of their establishment (1939) and development (1945–1946), the social insurance courts had no sufficient substantiation in the then binding constitutional acts, as its nature, position within the legislation, and organization were incongruent with the provisions of the March and April constitutions. It was so as no space was provided for this special division of administrative judiciary while drawing either of these acts, and the arguments to the contrary formulated at the time are not convincing. Many of the claims about the full coherence of the Act with the constitutions quoted above remain unjustified, which suggests that the authors of the Act were aware of its weakness, both in this scope, and in the scope of the nonexistence of procedures capable of disclosing such weaknesses in the context of the political will to pass the Act (before the second world war) and to establish insurance courts (directly after the second world war). Although it is a paradox, the administrative social insurance courts operating on the power of the pre-war legislation received full constitutional support only in the People’s Republic of Poland, in the stipulations of the Constitution of the People’s Republic of Poland of 1952 and the Act of 15th February 1962 on the Supreme Court enacting its assumptions, among others, through a signiﬁ cant novella of the Act of 28 July 1939 Law on the administrative social insurance courts.

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The Cherokee Constitution - the Road to a Sovereign State

Author(s): Magdalena Butrymowicz / Language(s): English Issue: 1/2008

The Cherokee People are one of the League of Five (Civilized) Nations of North America gathering, besides the Cherokees, the Creek, the Chickasaw, the Choctaw, and the Seminole. The colonists called this group of tribes civilized as they chose to follow the white man’s path. The first tribe to start relevant transformations was the Cherokee Nation who not only changed the tribal model but also saved their culture, language, tradition and the law of the ancestors. The Cherokee people decided to transform their tribal society into a modern state in the beginning of the 19th century. In no more than 28 years, the Cherokee National Council enacted numerous written laws, established state capital, organized financial structure of the state, and established a system of justice. The culmination of these changes was the passing of the state constitution. It was the first Native American written constitution in North America which brought together European and tribal law. It was, quite obviously, based on the American model, yet only in its structure and in the case of certain significant regulations unknown to the Cherokee, as e.g. the separation of powers and the taxation system. The Bill of Rights was also included in their constitution. This article reviews the 28 years of building the Cherokee state, crowned by the enacted constitution. The time when the great chiefs and elders gradually prepared their tribal followers to follow on the path of building a constitutional state, being the only way to survive in the world of white man so unreceptive for the Cherokee.

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Federalne Ministerstwo Sprawiedliwości RFN w cieniu narodowosocjalistycznej przeszłości – znaczenie projektu Rosenburg w Polsce

Author(s): Magdalena Bainczyk / Language(s): Polish Issue: 4/2019

In 2012, the Federal Ministry of Justice in Germany set up an Independent Commission to investigate the Ministry’s handling of the Nazi past in the early years of the West Germany. The findings of the investigation were presented 2016 in a book under the title „Rosenburg files” and later in exhibitions both in German and English language. The findings are shocking. More than half of all senior staff of the Federal Ministry of Justice had been former Nazi collaborators and one in five had been a member of the SA. This personnel continuity had very important consequences also for Poland and its citizens for example: discrimination against former victims, Nazi criminals were barely prosecuted. The personnel-based and approach-based continuities had serious consequences for a process of building a democratic state based on rule of law. All these aspects have been shortly analyzed in the article.

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K vývoji právní subjektivity politických stran

Author(s): Vladimír Mikule / Language(s): Czech Issue: 3/1997

The development of the legal personality of political parties in Czechia has evolved through various legislative changes. Initially, political associations were subject to strict regulations, including restrictions on membership and activities. Over time, political parties gained more recognition and legal status, particularly after the enactment of laws in 1990 and 1991, which formally acknowledged them as legal entities capable of participating in both private and public legal relations. The historical context, including the influence of the Austro-Hungarian legal system and the impact of the communist regime, played a significant role in shaping the legal framework for political parties. The legal status of political parties was often ambiguous, with various interpretations and judicial decisions influencing their recognition and rights. The post-World War II period saw further developments, with political parties being integrated into the National Front and their legal status being gradually clarified. The transition to a democratic system in the late 20th century marked a significant shift, leading to the current legal recognition and regulation of political parties in Czechia.

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Konference "Právo politických stran v ČR" na Právnické fakultě Masarykovy univerzity

Author(s): Renata Vlčková / Language(s): Czech Issue: 3/1997

The conference titled "Právo politických stran v ČR" held at the Faculty of Law, Masaryk University, on May 29, 1997, brought together prominent figures from the scientific and political spheres, including members of the Czech Parliament and judiciary. Discussions focused on the legal and political aspects of political parties, their historical development, and their role in society. Key topics included the legal definition of political parties, their internal dynamics, and the regulation of their financing. The conference also addressed controversial issues such as the registration and dissolution of political parties, extremism, and foreign donations. The event provided a platform for both theoretical insights and practical experiences, fostering a rich exchange of ideas.

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Poznámky k proceduře rozhodování pléna Ústavního soudu

Author(s): Vojtěch Šimíček / Language(s): Czech Issue: 3/1997

The article discusses the procedural aspects of decision-making by the plenary session of the Constitutional Court of the Czech Republic. It highlights the division of cases between the plenary session and smaller panels, emphasizing the importance of the plenary session in deciding the most serious cases, such as the annulment of laws and constitutional complaints. The article also addresses the quorum requirements and the challenges in interpreting legal provisions related to decision-making. It critiques the current practice of the Constitutional Court, suggesting that the existing procedures may not cover all potential scenarios and proposing possible improvements. The author argues for a consistent approach to decision-making, whether the outcome is to annul or uphold a law, and stresses the need for a qualified majority in significant cases. The discussion includes examples of past decisions and differing opinions among judges, illustrating the complexities and potential inconsistencies in the Court's practice. The article concludes by suggesting that legislative changes might be necessary to ensure clearer and more effective decision-making processes.

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Politické strany v řízení před Nejvyšším soudem

Author(s): Eliška Wagnerová / Language(s): Czech Issue: 3/1997

The document discusses the involvement of political parties in proceedings before the Supreme Court of the Czech Republic. It outlines the types of cases where political parties may appear, including appeals against registration refusals, dissolution or suspension of activities, and review of election decisions. The document highlights the legal norms applicable to these proceedings, emphasizing the mixed nature of the relevant laws, which contain both substantive and procedural elements. It also addresses the procedural specifics of these cases, such as the non-contentious nature of certain proceedings and the investigative principle applied. The document critiques the current legal framework, suggesting that it may not adequately reflect the unique nature of these proceedings and calling for potential reforms to better accommodate the procedural rights of political parties.

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Územní dosah základních práv podle právního řádu České republiky

Author(s): Jan Filip / Language(s): Czech Issue: 3/1997

Territorial Scope of Fundamental Rights According to legal Order of the Czech Republic The author examines the problem of the territorial scope of fundamentals rights in the Czech legal order. He points out that legal acts of the Czech bodies of public power are able to have an legal impact outside of the Czech territory in the sense that inhabitants of other states are concerned in their rights guaranted by the Charter of Fundamental Rights and Freedoms (right to life, right to protection of health, right to live in a favourable living enwiroment, right of petition). Further the author deals with the problem if there is any possibily to protect himself or herself against such acts.

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Ještě jednou k otázce pozitivního a "nadpozitivního" práva

Author(s): Vladimír Klokočka / Language(s): Czech Issue: 4/1996

This article by Vladimír Klokočka responds to JUDr. Jan Spáčil's critique of Klokočka's previous work on positive and "super-positive" law. Klokočka acknowledges Spáčil's shift from traditional legal positivism to a modern post-war approach, aligning with Gustav Radbruch's conclusions on the failures of pre-WWII legal positivism. The article discusses the concept of "super-positive" law, which is seen as superior to positive law and rooted in post-war German constitutional law. Klokočka argues that natural law, as part of a democratic legal state, should be applied directly, even if not explicitly defined in legal terms. He emphasizes that fundamental democratic principles and human dignity cannot be fully positivized and must be interpreted philosophically and sociologically. Klokočka also critiques Spáčil's view that natural law becomes valid only when it takes the form of positive law, arguing that natural law principles inherently limit state power. The article concludes by stressing the importance of integrating political principles into constitutional law to ensure the legitimacy and stability of a democratic legal state.

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Současná právní úprava institutu státní služby v České republice

Author(s): Monika Veselá / Language(s): Czech Issue: 4/1996

The institution of civil service has not been determined and regulated quite precisely in the existing law and order of the Czech Republic. For the time being we may only speak about so called special civil service, armed, within the framework which the status of soldiers, policemen and prison ward officers is determined. The status of civil administrative service is completely missing. A general public administration reform is often discussed. One of its basic steps may be seen in adopting the Civil Service Act as predicted in the Constitution of the Czech Republic. This Act will, at an appropriate level, determine the employment of civil servants and establish optimum terms for proper exercise of general administrative service, while the special service will remain subject to regulation under specialized laws. A basis for general civil service will be thus created by a public law official relationship between a state and a civil servant established by the appointment for a function. The civil servant will be, within the exercise of his service, imposed special duties on which will be compensated by other rights and advantages. The principle of disciplinary liability will also be determined. The whole Act will be based upon a career system establishing the institution of definitiveness. The institution of civil service has to be established under the law properly in order that the executive power within the state might be appropriately exercised.

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K otázce ústavní ochrany společnosti a státu de lege lata a de lege ferenda

Author(s): Jan Filip / Language(s): Czech Issue: 4/1996

The article discusses the constitutional protection of society and the state in the Czech Republic, emphasizing the importance of the state's existence and functioning for individuals and society. It outlines the normative projection of the Czech Republic as a free, sovereign, and democratic state, based on respect for human rights and principles of civil society. The article examines the legal framework for protecting this normative state, including responses to deviations from the norm such as states of emergency, war, and other extraordinary situations. It highlights the absence of explicit provisions for extraordinary states in the current constitutional order and the need for legal instruments to ensure the state's normal functioning. Historical events like the disintegration of the Habsburg monarchy, the destruction of the state in 1938-1939, and changes in the political system in 1948 and 1989 are referenced. The article also discusses the role of constitutional law in defining rules of conduct during threats to the state's existence and democratic system. It calls for a systematic legal framework to address extraordinary situations and protect the state's fundamental conditions.

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The Perception of the Constitution of 3 May 1791 in the Contemporaneous American Press

Author(s): Ewa Wiśniewska / Language(s): English Issue: 1/2021

The paper investigates the ways the American press of the times portrayed the Constitution of 3 May 1791. The Governance Act was valid from the date it was issued, May 3, 1791, until June 17, 1793, when the last Sejm, the one which acknowledged the second partition of Poland, was held. Despite the great distance and the limitations imposed by the technological possibilities of the times, the topic was nonetheless widely commented on at the time and positively received. It was much appreciated and enthusiastically welcomed in American press, which understood the Constitution as a natural continuation of the process of democratization. However, the articles depicting the document were rather general and far-fetched in their optimism towards introducing democracy, accusing the Constitution of causing social and political changes in Europe. Analyzing press articles, one may jump into hasty conclusion that the king, Stanislaw August Poniatowski, was a reformer whose main goal was to make all his subjects equal, which was not necessarily true. The Constitution was not thoroughly translated, which simplified and idealized its meaning.

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Comparative Arguments in the Legal Debate Over Judiciary Reform in Poland

Author(s): Rett R. Ludwikowski,Izabela Kraśnicka / Language(s): English Issue: 2/2021

The judiciary reform in Poland started in 2015 with the replacement of judges in the Polish Constitutional Tribunal, the court responsible for the judicial review. It continued with amendments of laws addressed to judges and functioning of the Polish Supreme Court. Controversies over the reform reached the international level and triggered reactions from the European institutions and resulted in judgments of the Court of Justice. The article deals with comparative arguments (examples from the United States, Austria, France or Germany) concerning the extensive judiciary reform that have been presented by its authors throughout the debates and as response to criticism.

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Koncepcje samorządu terytorialnego w polskich konstytucjach dwudziestolecia międzywojennego (1918–1939

Author(s): Paweł Cichoń / Language(s): English Issue: 1/2022

The article outlines concepts of local government based on the provisions of the Constitution of the Republic of Poland of 17 March 1921 (the March Constitution) and the Constitutional Act of 23 April 1935 (the April Constitution). In the first place, the assumptions of the March Constitution concerning the political system in relation to local government are presented, and then its influence on the formation of this local government in the Second Polish Republic is shown. The author outlines challenges and difficulties accompanying the attempts to adopt statutes on local government in line with the spirit of the March Constitution and outlines the legal basis for the organisation and activity of local government in Poland during the interwar period (1918–1939). Attention is also drawn to the changes in the approach of those in power to the role of local government which followed the May Coup in 1926 and were introduced in the Act of 23 March 1933 on the Partial Change of the Local Government System. The author also presents the legal position of local government in the April Constitution and indicates the ideas that underlay the creation of constitutional concepts of local government and how they were externalised in the specific political conditions. The article also provides a comparative analysis of the concept of local government resulting from the Constitutions mentioned above.

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Konstytucyjne prawo równego dostępu do służby publicznej a instytucja podwójnego obywatelstwa

Author(s): Adam Bodnar,Adam Ploszka / Language(s): Polish Issue: 4/2023

The “Law and Justice” government in Poland in 2016–2020 conducted a controversial “judicial reform”. As a result, access to the profession of judge and prosecutor for people with dual citizenship was initially denied and eventually significantly restricted. In this piece, we analyze these legislative changes through the lens of their conformity with the Polish Constitution, in particular with the constitutional right of access to public service, as well as with Poland’s binding international law. We are also critically examining the arguments raised to justify these regulations and identifying the effects of their implementation. We argue that depriving people of multiple citizenship of access to the judge or prosecutor profession violates the Polish Constitution, as well as international law.

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NATIONAL REFERENDUM IN REPUBLIC OF BULGARIA

Author(s): Maria Neikova,Barbara Węglarz / Language(s): English Issue: 1/2023

A referendum, which is a form of expressing the will of citizens, plays an important role in democratic state systems. It is a tool that complements the model of representative power that is dominant in many countries, allowing citizens to directly participate in the decision-making process. In this context, the referendum, as a tool that complements the representative form of government, has found its place in the constitutions of many post-communist countries in Europe, including Bulgaria. The article presents an analysis of the national referendums of this Balkan country, taking into account both the historical context and current legal provisions regulating this form of civic participation. The analysis is based on a review of legal provisions and a study of historical examples of referendums in Bulgaria, including those related to political transformations after the communist period. In the context of the current challenges of democracy and public participation, the analysis of national referendums in Bulgaria aims to provide a deeper understanding of the role of this form of direct democracy in the Bulgarian political system and the possible implications for the future of citizen participation in the decision-making process.

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